2014 C L C 397.
Azad Jammu and Kashmir Family Courts Act (XI of1993)---
----Ss. 5, Sched. & 14---Suit for restitution of conjugal rights and suit for jactitation of marriage---Trial Court decreed suit for restitution of conjugal rights in favour of husband, while dismissed cross-suit for jactitation of marriage filed by the wife against her husband---Statements of three witnesses produced by husband in proof of his claim, had revealed that wife had contracted marriage with the plaintiff-husband with her own free-will and consent---Defendant/wife admitted Nikah Nama with the plaintiff-husband; and she also admitted her signatures on the contents of the Nikah-Nama and admitted that she prepared the deed by her own writing, and also signed affidavit---Wife was a student of M.Phil and not an illiterate lady, who did not know anything---Plaintiff-husband, in circumstances had proved his case through cogent and convincing evidence, and the Trial Court had rightly decreed suit for restitution of conjugal rights in favour of plaintiff/husband---Witnesses produced by the wife in proof of her case for jactitation of marriage, had not denied the Nikah-Nama with her husband---Wife having failed to prove her case through cogent and convincing evidence, Trial Court had rightly dismissed her suit for jactitation of marriage in right direction---No misreading or non-reading of evidence had been committed by the Trial Court while recording impugned judgment and decree, same were allowed to stand.
PLD 1997 Lah. 301; PLD 1997 Lah. 666; PLD 1999 Lah. 494 and PLD 1999 Lah. 479distinguished.
Manzoor Hussain Raja for Appellant.
Ch. Muhammad Manzoor for Respondent No.1.
Mst. GULSHAN PARVEEN VS AMAR SAFEER KHAN2014 C L C 397[Shariat Court (AJ&K)]Before Sardar Muhammad Shahzad Khan, JMst. GULSHAN PARVEEN----AppellantVersusAMAR SAFEER KHAN and 10 others----RespondentsCivil Appeal No.35 of 2012, decided on 07/06/2013.
JUDGMENT
SARDAR MUHAMMAD SHAHZAD KHAN, J.--- The above titled appeal has been directed against the judgment and decrees of Judge Family Court Muzaffarabad dated 28-4-2012, whereby the suit filed by the respondent No.1 for restitution of conjugal rights was decreed, while the cross-suit filed by the appellant for jactitation of marriage was dismissed.
2.The brief facts forming the background of the instant appeal are that the respondent No.1 herein filed a suit for restitution of conjugal rights, while the appellant herein filed a cross-suit for jactitation of marriage before Judge Family Court Muzaffarabad on 16-4-2012. After filing of the suits, the trial Court summoned the parties. In response to the notice of the Court, both the parties appeared before the trial Court and submitted their written statements wherein they refuted the claim of each other. The trial Court in the light of pleadings of the parties framed the relevant issues. After framing of issues, the trial Court directed the parties to produce evidence in support of their respective claim. The appellant, Mst.Gulshan Parveen produced five witnesses namely Sardar Muhammad Shabbir, Sardar Muhammad Imtiaz Khan, Muhammad Hayat Khan, Muhammad Rashid Khan, Muhammad Dil Pazeer and she also got recorded her statement as witness. She produced a copy of Nikahnama as documentary evidence. On the other hand, the respondent No.1, Amar Safeer Khan produced three witnesses namely Muhammad Irfan, Sardar Arshad Mehmood Khan, Advocate, Zahid Hussain and he also got recorded his statement as witness.
3.The trial Court after concluding of the trial decreed the suit for restitution of conjugal rights in favour of the respondent No.1, while the cross-suit filed by the appellant was dismissed vide its judgment and decrees dated 28-4-2012, hence this appeal.
4.Manzoor Hussain Raja, the learned counsel for the appellant argued that the trial Court committed grave illegality while recording the impugned judgment and decrees. The learned counsel further contended that the respondent No.1 Amar Safeer forcibly registered a false and fabricated Nikahnama without consent and wish of appellant, but the trial Court failed to consider this important aspect of the case and wrongly dismissed the suit for jactitation of marriage. According to the learned counsel the appellant is wedded wife of one Maswar Rashid and they have also contracted marriage on 3-1-2009. He further submitted that the appellant has proved her case through cogent and convincing evidence and the trial Court by misreading and non-reading of evidence recorded the impugned judgment and decrees against the norms of law and justice, which is not tenable in the eye of law. The learned counsel zealously argued that the statement of appellant is very much important because she refuted the claim of respondent No.1, but the trial Court failed to note this vital element of the case and arrived at wrong conclusion. He further argued that a forged and fictitious medical report Exh.P.C. has been prepared by the respondent. Finally, the learned counsel prayed that by accepting the appeal, the judgment and decree may be set aside to the extent of restitution of conjugal rights and a decree for jactitation of marriage may be passed. In support of his contentions, the learned counsel cited the following case-law:---
(1) PLD 1997 Lah. 301; (2) PLD 1997 Lah. 666; (3) PLD 1999 Lah. 494 and PLD 1999 Lah. 479.
5.On the other hand, Ch. Muhammad Manzoor, the learned counsel for the respondent No.1 while controverting the arguments raised by the learned counsel for the appellant submitted that the trial Court has rightly decreed the suit for restitution of conjugal rights in favour of the respondent No.1 in right direction which warrants no interference by this Court. The learned counsel further contended that the respondent No.1 has proved his case through cogent and convincing evidence and the trial Court by appreciating the same arrived at right conclusion. The learned counsel zealously argued that respondent has also made engagement with the appellant on 26-7-2004 and thereafter, the appellant contracted marriage with respondent No.1 with her own free will and consent on 10-11-2008, therefore the question of fake and fictitious Nikah is baseless. The learned counsel argued that the appellant priortothissuithasinstitutedasuitforjactitationofmarriageon 19-1-2009 which was withdrawn by her and after preparing a forged Nikahnama with one Maswar Rashid, she again filed the suit. According to the learned counsel the second Nikahnama Exh.PDA was prepared on the basis of imitation and in this regard the father of respondent No.1 has registered a case at Police Station Ghari-Duppata wherein the police have also conducted investigation and the facts-finding report supported the version of respondent. According to the learned counsel the appellant remained with respondent No.1 as his wife and on 2-1-2009, she was tested positive for pregnancy. He further argued that according to Nikahnama Exh.PB, the appellant herself signed in the column of Nikahnama, which shows that there was no force put by the respondent for Nikah. The learned counsel defended the impugned judgment and decrees on all counts.
6.I have heard the learned counsel for the parties and gone through the record of the case with utmost care.
7.A careful consideration of the record reveals that there are two claimants of the appellant. The respondent No.l, Amer Safeer filed a suit before the trial Court for restitution of conjugal rights wherein he claimed that he married with appellant on 10-11-2008 in lieu of dower amount 200,000/- (two lac). It was further claimed by him that before marriage, they have contracted engagement (Mangni) in the year 2004. It was also contended in his plaint that on 9-1-2009, when she came to meet her parents at village, her parents and other family members disagree with this marriage and they also prepared another fake, false and fictitious Nikahnama Ex.PDA with one Maswar Rashid on 3-1-2009. To prove the case respondent No.1 produced as many as three witnesses. The relevant caption of statements of the witnesses are hereby reproduced as under:---
Muhammad Arif, stated before the trial Court that he knows the parties. He further stated that he was the witness of the Nikah which was held in Court situated at Islamabad. He further contended that the appellant has contracted the marriage with her own free will and consent and there was no mask faced women along with them.
Arshad Mehmood, Advocate stated before the trial Court that he is practising as a lawyer in Islamabad for the last 12 years. On 10-11-2008, the appellant and respondent No.1 came to him and declared that they want to contract court marriage. On their insistence, he prepared the affidavit on behalf of appellants as Exh.PA and she also read and signed the aforesaid affidavit.
Zahid Hussain, stated before the trial Court that he also knows the parties. He further stated that he was the witness of the Nikah. He further narrated in his statement that the Urdu deed was written by the appellant herself. He also discloses that the spouses also contracted engagement 6 years prior to this marriage.
AcarefulperusalofstatementsofthewitnessesproducedbytherespondentNo.1,AmarSafeerrevealsthattheappellant, Mst. GulshanParveenhascontractedthemarriagewithherown free will and consent. In this regard, the statement of the appellant, Mst.Gulshan Parveen is very much important for just and proper decision of the case. The relevant caption of her statement is reproduced as under;---
Inviewofabovestatementofappellant,itiscrystalclear thattheappellantadmittedtheNikahnamaExh.P.B.withrespondentNo.1andshealsoadmittedhersignaturesonthecontentsoftheNikahnama.Itispertinenttonoteherethatshe herselfadmittedthatshepreparedthedeedbyherownwritingand also signed affidavit Exh.P.A. It also reveals from the record that she was a student of M.Phil and not an illiterate lady, who does not know anything. Thus, in this view of the matter, the respondent No.1 has proved his case through cogent and convincing evidence and the trial Court has rightly decreed the suit for restitution of conjugal rights in his favour.
8.So far as the case, for jactitation of marriage is concerned, in this regard the appellant, Mst.Gulshan Parveen produced as many as five witnesses. A careful perusal of statement of the witnesses reveals that all the witnesses have not denied the Nikah with respondent No.1 Amar Safeer. They only pressed a point that the Nikah dated 10-11-2008 was forcibly contracted and not by the freewill of appellant. Now the question arises here that if the respondent No.1 abducted the appellant from University and after contracting forged Nikah with her, he left her at the gate of University, then why the appellant remained silent and did not register any criminal case against him. In my view, the appellant has failed to prove her case through cogent and convincing evidence, therefore the trial Court has rightly dismissed her suit for jactitation of marriage in right direction. It will not be out of place to mention here that the second claimant, Maswar Rashid has not recorded his statement before the trial Court with regard to his claim which was very important for just and proper decision of the case, therefore the Nikahnama Exh.PA is unlawful and is against the Injunction of Islam, therefore, the same is not tenable in the eye of law. No misreading or non-reading of evidencehasbeencommittedbythetrialCourtwhilerecordingtheimpugnedjudgmentanddecrees,thereforethesameareallowed to stand.
The case-law cited by the learned counsel for the appellant has no relevancy with the facts and circumstances of the present case, therefore, need not to be discussed.
For the reasons listed above, finding no force in this appeal, it is hereby dismissed.
HBT/12/Sh.C.(AJ&K)Appeal dismisse
0 comments:
Post a Comment